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2020
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[2020] ZAGPJHC 284
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Golden Fried Chicken (Pty) Ltd v Vlachos and Another (4923/2018) [2020] ZAGPJHC 284; 2020 BIP 379 (GJ) (20 October 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 4923/2018
In the matter
between:
GOLDEN FRIED CHICKEN (PTY)
LTD
Applicant
and
VLACHOS,
D
First Respondent
SOUL
SOUVLAKI (PTY)
LTD
Second Respondent
JUDGMENT
YACOOB J:
1.
The applicant (“Golden”) trades
under the name “Chicken Licken”, through some 200 outlets
across the country.
These outlets are either franchises or operated
by Golden itself. Part of the branding used in the business are the
words “Soul”
and “Soul Food”. Golden has
registered these words as trade marks in terms of the
Trade Marks
Act, 194 of 1993
. Golden’s business was started in 1981, and it
claims that it is now second to the ubiquitous KFC in the takeaway
fried chicken
market.
2.
The first respondent has been selling
souvlaki, a type of Greek street food, under the name “Soul
Souvlaki” since November
2012. At the time of the hearing he
had two restaurants as well as selling food at events and providing
catering. The second
respondent was registered in 2016 and
apparently now is the proprietor of the restaurants. The first
respondent has been somewhat
coy as to the relationships between the
two respondents and the restaurants. For convenience, and unless I
have the need to distinguish
between the respondents, I refer to them
jointly as “Souvlaki”.
3.
Golden brings this application to interdict
the respondents from infringing its trademarks in a manner that falls
foul of the Trade
Marks Act, 193 of 1994 (“the Act”).
4.
The first respondent contends that he has
been wrongly joined to this application as the restaurants are run by
the second respondent,
which was registered in 2016. In this regard I
accept Golden’s contention that, taking into account the
version set out in
the answering affidavit, the first respondent is
in any event the controlling mind of Soul Souvlaki and that for
purposes of this
application they can, and should, be considered
together.
5.
The second respondent also brings a
counter-application, to deregister or remove certain trade marks of
the applicant from the trade
marks register on the basis of disuse.
Hearsay
evidence
6.
Both Golden and Souvlaki rely to an extent
on hearsay evidence. Both seek the admission of that evidence,
although only Souvlaki
included a prayer to that effect in its notice
of motion.
7.
In my view it is in the interests of
justice to admit the hearsay evidence on both sides, save for that
evidence which has been
successfully rebutted or which I find in the
body of this judgment to have no probative value.
The
main application
8.
Golden has registered the trade marks
“soul” and “soul food” in classes 29,
[1]
30,
[2]
35
[3]
and 43,
[4]
amongst others. Golden’s other trade marks are not relevant to
this application.
9.
The second respondent has applied for the
registration of the trade mark “Soul Souvlaki” in classes
35 and 43.
10.
Golden alleges that it and Souvlaki are
competitors, and that Souvlaki’s mark is confusingly and
deceptively similar to Golden’s
registered marks. It alleges
that the word “soul” is the dominant factor in both marks
and the thing that makes each
mark distinctive.
11.
It is alleged that an ordinary person would
be confused or deceived into thinking that there is a connection
between Golden and
Souvlaki or that Souvlaki’s products have
their origin with Golden.
12.
Golden alleges further that Souvlaki is
exploiting Golden’s trade mark and damaging its brand, as well
as possibly or potentially
causing loss of sales by confusion.
13.
Golden relies on
sections 34(1)(a)
and
34
(1)(c) of the
Trade Marks Act, 194 of 1993
for the relief it seeks.
14.
Section 34
(1) provides:
The
rights acquired by registration of a trade mark shall be infringed
by-
(a)
the
unauthorized use in the course of trade in relation to goods or
services in respect of which the trade mark is registered, of
an
identical mark or of a mark so nearly resembling it as to be likely
to deceive or cause confusion;
(b)
the
unauthorized use of a mark which is identical or similar to the trade
mark registered, in the course of trade in relation to
goods or
services which are so similar to the goods or services in respect of
which the trade mark is registered, that in such
use there exists the
likelihood of deception or confusion;
(c)
the
unauthorized use in the course of trade in relation to any goods or
services of a mark which is identical or similar to a trade
mark
registered, if such trade mark is well known in the Republic and the
use of the said mark would be likely to take unfair advantage
of, or
be detrimental to, the distinctive character or the repute of the
registered trade mark, notwithstanding the absence of
confusion or
deception: Provided that the provisions of this paragraph shall not
apply to a trade mark referred to in
section 70(2).
[5]
15.
Golden’s allegation that Souvlaki’s
intended mark is confusingly and deceptively similar to those of
Golden brings the
matter within the purview of
section 34(1)(a).
It
was further contended that Souvlaki’s use of the word “soul”
is likely to take unfair advantage of or be detrimental
to the
distinctive character and repute of Golden’s trade mark,
implicating
section 34(1)(c).
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16.
Unsurprisingly, Golden does not rely on
section 34(1)(b)
, which requires the goods and services provided by
the two entities to be so similar that a likelihood of confusion or
deception
would exist. I consider that this is an indication that
Golden prudently does not suggest that the goods and services it
provides
are “so similar” to those provided by Souvlaki.
17.
Golden emphasises in its founding affidavit
that its brand is built around the African American concept of
“soul”, both
in soul music and other aspects of African
American culture. This also includes the idea of “soul food”.
Golden has
built its branding around this idea, and its various
advertising campaigns have developed the idea in various ways.
18.
Souvlaki’s answering affidavit also
serves as the founding affidavit in its counter-application. It was
submitted on behalf
of Golden that Souvlaki does not seriously
dispute the allegations in Golden’s founding papers, and that
Souvlaki’s
real defence is the counter-application. It is the
case that Souvlaki relies on its counter-application to avoid the
relief sought
in the main application. Nevertheless Souvlaki does
dispute the allegations in the founding papers.
19.
Souvlaki contends that the two business
could not be further apart. The food, and the look and feel of the
restaurants, are very
different. Souvlaki’s restaurants appear
to be somewhat less of a “fast food” offering as it
caters to festivals,
and has been mentioned in various reviews and
other media features. This implies also that Souvlaki attracts a
different clientele,
and that, to the extent that the clientele
overlaps with Golden, there is no likelihood of confusion. Souvlaki
denies that Golden
and Souvlaki compete.
20.
Golden suggests that it is well known in
“the market” without attempting to define the market, and
in reply, alleges
that Souvlaki is aimed at the same market. However,
there is no evidence of this, merely an assertion.
21.
Souvlaki further contends that the word
“soul” has many different meanings, and that Golden has
no right to monopolise
the concept. Souvlaki also denies that Golden
uses the word “soul” as a mark on its own. It contends
that the “soul
food” mark is only ever used together with
the Chicken Licken logo.
22.
I am satisfied that, at least as far as the
“soul” mark is concerned, Golden has demonstrated that it
uses it independently
of the Chicken Licken logo.
23.
Souvlaki denies also that Golden has
demonstrated any goodwill or reputation, contending that packaging
and menus are meaningless
without more. Souvlaki also contends that
the use of the marks by Golden’s franchisees has not been
established to be permitted
use under the Act. Souvlaki also contends
that the marks “soul” and “soul food” as used
by Golden are not
well known.
24.
Souvlaki points out that there are numerous
companies registered which use the word “soul”, a number
of which are food
related, and that since Souvlaki began operating in
2012, there has not been any incidence of confusion.
25.
In response to this, Golden contends that
any restaurants using the word “soul” are infringing
Golden’s rights.
Has
Souvlaki infringed section 34(1)(a)?
26.
Golden contends that Souvlaki’s use
of the word “soul” is deceptively and confusingly similar
to Golden’s
trade marks, because it contains the whole of the
mark “soul” which Golden has registered and the mark then
retains
its character. Golden contends that the word “souvlaki”
does not serve to distinguish Souvlaki’s mark as
it is
simply descriptive of the goods Souvlaki offers. Golden suggests,
further, that “soul” is the dominant element
in both
“Soul Souvlaki” and “Soul Food” because it is
the first word in each mark, and is therefore there
most memorable
and dominant.
27.
In the founding affidavit, Golden
identifies Souvlaki’s restaurants as having “a
cosmopolitan patronage, serving people
from a variety of backgrounds,
cultures, income levels and localities”.
28.
It is notable that, apart from the
allegation that Golden “is second only to KFC in size in the
take-away fried chicken market”
Golden makes no attempt to
describe the kind of people it attracts or the kind of food it
serves. The impression is created that
Golden leaves this
deliberately vague. The closest Golden comes to any kind of
definition of the market is the reference to KFC
alluded to above.
29.
An examination of the menus and marketing
material annexed to the papers leads one to the conclusion that the
outlets sell takeaway
or “fast” food, including burgers,
sandwiches and fried chicken and its accompaniments.
30.
Golden alleges that there are similarities
between the two businesses, but again leaves this somewhat vague. The
only similarity
identified is that they both “provide
restaurant services, selling prepared meals and related items”.
31.
Golden then alleges that a distinguishing
factor is branding. It alleges that Souvlaki has engaged in conduct
“characterised
by the competitive adoption of a confusingly
similar brand” which “misappropriates and prejudices”
Golden’s
goodwill.
32.
No factual basis is provided on the basis
of which any misappropriation or prejudice may be established, nor of
any reason why there
may be confusion.
33.
The fact that both entities provide food or
restaurant services does not, in itself, result in any basis on which
an inference may
be made that there is any confusion or deceptive
similarity between the two.
34.
On Golden’s own version it has sought
to trade on a cultural association with American soul food, soul
music and other cultural
elements associated with the word soul, and
in particular African American culture, in its branding, including
basing its primary
food offering on a food that is well known as an
American staple, crumbed fried chicken.
35.
Also on Golden’s version, Souvlaki is
a Greek word and a Greek inspired food. It could not be further away
from Golden’s
brand.
36.
Golden suggests that because souvlaki is
merely a kind of Greek food it cannot be a “distinguishing”
factor which will
distinguish Souvlaki’s product from Golden’s,
and that the word “souvlaki” is simply descriptive.
37.
This is patently not the case. If one
accepts that Golden is in the fast food business selling burgers,
fried chicken and the like,
the word “souvlaki” in fact
does distinguish Souvlaki from Golden. It defines Souvlaki’s
product as grilled skewered
meat in the Greek style, and in
particular, as Greek food. There is clearly no risk of confusion.
38.
Golden suggests that the word “soul”
is the dominant and distinguishing factor in the trade marks of both
parties. It
may be the dominant factor in Golden’s trade marks,
taking into account the reliance Golden placed on a culture that
already
existed, in building its brand. However, it does not appear
that “soul” is the distinguishing factor in Souvlaki’s
brand. Here it is the “souvlaki” that informs the
consumer that the food is likely to be Greek, and, for the more
informed consumer, likely to be built around meat grilled on a
skewer.
39.
I agree with Souvlaki that Golden cannot
contend that only it has the right to exploit the culture and
meanings associated with
the words “soul” and “soul
food”. This would be impractical and chilling not only on
businesses wishing
to use the words but also on the manner in which
the associated culture may be disseminated and grown in the marked.
Certainly,
for example, Golden cannot claim to have sole benefit of
the popularity of American soul music, or of American soul food,
particularly
when people’s exposure to such things has been
exponentially increased as a result of many factors, including the
expansion
of Internet access.
40.
The issue then must be whether there is any
likelihood of deception or confusion arising from the overlap in the
marks used by Souvlaki
and Golden. This approach is consistent with
that set out by Keightley J in
Discovery
Ltd and Others v Liberty Group Ltd
.
[6]
In that judgment Keightley J usefully sets out a summary of relevant
judgments, particularly those of the SCA.
41.
The important question is whether the
public may perceive a connection between Golden and Souvlaki by
Souvlaki’s use of the
trade mark “Soul Souvlaki”,
and whether there is likely to be any confusion. Is there any
likelihood that consumers
may be misled into believing that the
origin of Souvlaki’s goods has anything to do with Golden?
[7]
If there is nothing misleading there is no breach.
[8]
42.
It is clear that the answer to this
question in this particular case must be no.
43.
It follows that Golden has not established
any infringement of section 34(1)(a) of the Act.
Has
Souvlaki infringed section 34(1)(c)?
44.
Section 34(1)(c) does not require any
deception or confusion for an infringement to occur. It protects a
trade mark that is well
known in the Republic, and an infringement
occurs if the use complained of takes unfair advantage of, or is
detrimental to the
distinctive character or repute of the registered
marks.
45.
Golden has included in the evidence of its
reputation the results of a survey it conducted in 2014. It alleges
that participants
are a true sample of the (undefined) market, and
shows that a percentage of the participants associate “soul
food”
with Golden’s business.
46.
The percentage is certainly not a majority,
and the number of people surveyed is not significant. However, it
does show an association,
and that Golden is somewhat well known. It
is not clear exactly how well known the trade mark must be for
purposes of the section,
but I accept that Golden has established
that it is at least relatively well known.
47.
Souvlaki suggests that all that the survey
demonstrates is that the majority of people surveyed did not
associate the trade mark
with Golden’s business. I think that
this is an unreasonably simplistic way of looking at it. The manner
in which people
recognise things is always nuanced, and there
certainly appears to have been at least a measure of recognition.
48.
I accept, again, for purposes of the test
under section 34(1)(c), that Golden has established that its use of
the registered trade
marks “soul” and “soul food”
is well known.
49.
The question then is whether Souvlaki’s
use of the word “soul” which is part of Golden’s
trade marks takes
unfair advantage of Golden’s reputation, or
in any way is detrimental to the distinctive character or repute of
Golden’s
marks.
50.
The purpose of section 34(1)(c) is to
protect the reputation and value of a well known mark.
[9]
51.
Certainly, having found that there is no
similarity in the offerings of the two parties, it would be difficult
for me to find that
Souvlaki takes or will take unfair advantage of
Golden’s reputation. There can be no advantage to Souvlaki in
any association
with Golden, considering the differences between
them. Nor has Golden alleged any facts which support such a
conclusion. Again,
Golden simply asserts that this is a possibility,
without providing any basis for the assertion.
52.
Similarly, the difference between the two,
and the fact that the word “souvlaki” clearly
distinguishes Souvlaki’s
offering as a Greek type of food,
means that Souvlaki’s use of the word “soul” cannot
affect the distinctive
character or repute of Golden’s marks.
The context shows that the use of the two marks is entirely different
and means entirely
different things. It is difficult to see how
Souvlaki’s use of the word “soul” affects Golden at
all, and Golden
has made no attempt to demonstrate that to the court.
53.
I agree with Souvlaki that Golden cannot
contend that only it has the right to exploit the culture and
meanings associated with
the words “soul” and “soul
food”. This would be impractical and chilling not only on
businesses wishing
to use the words but also on the manner in which
the associated culture may be disseminated and grown in the marked.
Certainly,
for example, Golden cannot claim to have sole benefit of
the popularity of American soul music, or of American soul food,
particularly
when people’s exposure to such things has been
exponentially increased as a result of many factors, including the
expansion
of Internet access.
54.
In any event, Souvlaki’s use of the
word is not associated with the American concept, and so is unlikely
to be associated
with or to affect Golden’s branding which
relies on it.
55.
In my view Golden has not demonstrated that
the integrity of its reputation and the value of its trade marks
would in any way be
affected by Souvlaki.
56.
Since Golden has not demonstrated any
infringement of the sections of the Act on which it relies, its
application for an interdict
must fail.
The
counterclaim
57.
Souvlaki’s counterclaim is
based on, first, section 27(1)(b) of the Act, and second, 24(1) read
with sections 10(2)(a), (b)
and (c) and 10(12) of the Act, seeking
the removal of the registered marks “soul” and “soul
food”.
Section
27(1)(b) – non use
58.
Souvlaki contends that, up to the date of
three months before the counter application was instituted, the marks
had not been used
for a continuous period of five years. This allows
an order to be made removing the marks from the register. In terms of
section
27(4) of the Act, Golden bears the onus of establishing that
there has been use of the marks.
59.
Souvlaki contends that there is no use of
the marks by themselves, but only of a composite mark including
Golden’s cockerel
head logo and the “Chicken Licken
Logo”.
60.
Souvlaki relied upon the SCA judgment in
Morris Material Handling Limited v
Morris Material Handling SA (Pty) Ltd
[10]
for the contention that none of the material put up by Golden to show
use of the marks show clear and unambiguous facts. It suggests
that,
as in the
Morris
judgment,
sales contracts, invoices, trading accounts and financial records
would be needed. This is not so. In the context of Golden’s
business, its use of the mark would be in advertising, marketing,
menus, and the material used and seen by its customers when they
enter an outlet. That is where the use would count, and where
Golden’s branding is focused. If Golden has invoices made out
in its name as Golden Fried Chicken and does not use the registered
marks, that would be neither here nor there as that is not
how
Golden’s business trades with the public. The menus and till
slips annexed are far more relevant.
61.
Souvlaki also contends that there is no
advertisement showing just the “soul” and “soul
food” marks.
62.
There is a plethora of marketing material
that shows the use of the word “soul” without the Chicken
Licken and cockerel
logos. This includes the menus and flyers
annexed. The word “soul” is used in describing and naming
offerings, such
as “soulslaw”, “soul fries”,
“soulsister”, “soulfire” a reference to “salt
with a lot of soul” and so on. I am satisfied that Golden has
demonstrated the use of the trade mark “soul”,
and in the
context of trade.
63.
There is one example annexed where the mark
“soul food” is used without the Chicken Licken logo, but
with the cockerel
head. There is one showing the “soul food”
mark on the top of a box, where the other logos occur on the sides of
the
box. This shows use in ways other than the composite alleged by
Souvlaki.
64.
Souvlaki argues that Golden, by annexing
social media posts, does not establish anything. For this submission,
Souvlaki relies on
a decision by the European Union Intellectual
Property Office (EUPIO) which finds that the presence of a trade mark
on a website
does not in itself show use unless there are indications
of traffic and hits, or of sales conducted through that website.
[11]
65.
I disagree that the case relied upon
supports Souvlaki’s submission. There is a difference between a
(often static) website
which does not show any traffic, and a social
media page. The extracts show that Golden has interacted with members
of the public
using the marks, in a manner that establishes and
maintains its brand presence and awareness.
66.
But even disregarding the print outs of
social media posts, Golden has in my view shown that there has been
at least some use of
the mark “soul food” in a manner
that is not in the composite which Souvlaki alleges is the only use
that has taken
place.
67.
The application based on section 27(1)(b)
of the Act therefore cannot succeed.
Section
24(1) read with section 9 and 10(2)(a)(b) and (c) of the Act –
removal of a mark not registrable
68.
Section 24(1) of the Act provides that a
court may make an order for the removal or variation of an entry in
the trade marks register
of, amongst others, a wrong or erroneous
entry in the register. Section 9 (1) requires a mark to be capable of
distinguishing the
relevant goods or services and sections
10(2)(a)(b) and (c) provide that certain types of marks are not
registrable or, if registered,
are liable to be removed from the
register.
69.
It is important to note that the court has
a discretion in terms of section 24(1), and is not obliged to order
that a mark be deleted
from the register. The court has a discretion
to order the removal or variation of the mark, amongst other
remedies.
70.
A mark not registrable in terms of section
10(2):
(a) is not capable of distinguishing within the meaning of section 9;
or
(b) consists exclusively of a sign or an indication which may serve,
in trade, to designate the kind, quality, quantity, intended
purpose,
value, geographical origin or other characteristics of the goods or
services, or the mode or time of production of the
goods or of
rendering of the services;
or
(c) consists exclusively of a sign or an
indication which has become customary in the current language or in
the bona fide and established
practices of the trade.
71.
Souvlaki contends that both the “soul”
and “soul food” marks are not capable of distinguishing
goods and
services.
72.
It contends also that the “soul food”
mark consists exclusively of a sign or an indication which may serve,
in trade,
to designate the kind, quality or other characteristics of
the goods and services, and also that it consists exclusively of a
sign
or an indication which has become customary in the current
language or in the
bona fide
and
established practices of the trade.
73.
In addition Souvlaki contends that it would
be
contra bonos mores
for
Golden to monopolise the “soul food” mark, which would
mean that the mark is not registrable in terms of section
10(12) of
the Act.
74.
In response to the section 10(2) attack,
Golden relies on the proviso to the section:
Provided
that a mark shall not be refused registration by virtue of the
provisions of paragraph (2) or, if registered, shall not
be liable to
be removed from the register by virtue of the said provisions if at
the date of the application for registration or
at the date of an
application for removal from the register, as the case may be, it has
in fact become capable of distinguishing
within the meaning of
section 9 as a result of use made of the trade mark.
75.
Golden also contends that the marks are not
descriptive of food in general, nor in customary usage.
76.
A reading of section 10(2) together with
the proviso makes it clear that a mark which is capable of
distinguishing within the meaning
of section 9 can not be
“exclusively” an indication of characteristics or
customary usage. If a mark is capable of
distinguishing within the
meaning of section 9, because of the reputation it has acquired when
the inquiry is carried out, then
it is safe from removal for any of
the section 10(2) grounds.
77.
It may well be that had Golden attempted to
register the trade marks at issue in today’s climate, when
there is much more
access to information than when Golden first
registered the marks, and there is more information available about
various cultures
and usages than there was in 1982 when Golden first
registered the marks, it would not have been successful.
78.
As indicated for example in one of the
judgments I was referred to be Souvlaki,
Golden
Fried Chicken (Pty) Ltd v Oh My Soul (Pty) Ltd
,
[12]
the word “soul” has entirely different meanings for
different consumers and in different cultures.
[13]
The accessibility of information also means that people are more
aware of different cultures and consumers choose to either associate
themselves with or sample different cultural experiences, whether
food or otherwise, in a more informed way.
79.
However, one must take into account that
this was not the case when Golden first registered the trade marks,
and that since then,
Golden has capitalised on an African American
culture which at the time was less accessible. The question then is
whether the marks
have in the intervening time, and through Golden’s
use of them, acquired the ability to distinguish.
80.
For the reasons set out in my consideration
of section 34(1)(c) of the Act, I am satisfied that Golden has
demonstrated that the
marks have acquired the ability to distinguish
Golden’s products within the fast food market, but no more.
81.
The Act provides for other remedies than
expungement from the register where a trade mark offends, for example
by applying conditions
to the use of the mark or other limitations on
the way the mark is used. However those other remedies were not
ventilated before
me so I am not able to properly consider them.
82.
At present and for purposes of this case I
then conclude that the application founded on section 10(2) fails
because the marks have
acquired, within a limited market, the ability
to distinguish.
83.
As far as section 10(12) is concerned, the
contention is that the registration of the words “soul food”
is
contra bonos mores
.
This is because the term is associated with a particular type of
cuisine, particularly American, and associated with African American
culture and tradition, stemming out of slavery. Golden’s
response is that the evidence put up in this regard is only hearsay.
but do not seriously deal with the
contra
bonos mores
argument.
84.
Again, this is a pity as the idea that one
company should have the monopoly on a term which represents the
cuisine of a group of
people and their culture is, at the very least,
problematic. Had the argument been treated more seriously, and
alternative remedies
ventilated, a more satisfactory outcome may have
been obtained.
85.
As it is, I am not satisfied that Souvlaki
has established that, were I to find conclusively that the
registration of the term “soul
food” is
contra
bonos mores
, the appropriate remedy is
expungement from the register. Certainly I cannot see, for example,
why the registration should not
remain with conditions applied.
86.
For these reasons, Souvlaki’s
application in terms of section 24(1) also cannot succeed.
Conclusion
87.
I see no reason why costs should not follow
the result.
88.
For the reasons set out above, I make the
following order:
1.
The
main application is dismissed with costs.
2.
The
counter-application is dismissed with costs.
____________________________
S.
YACOOB
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Appearances
Counsel for the
applicant:
A J Bester SC
Instructed
by:
Ron Wheeldon Attorneys
Counsel for the
respondents: Ms P Cirone
Instructed
by:
Christodoulou & Mavrikis
Date of hearing:
05 November 2019
Date of judgment:
20 October 2020
[1]
Class 29 includes various types of food and food
products, whether prepared or not.
[2]
Class 30 includes seasonings and sauces, as well
as beverages, prepared meals and baked goods.
[3]
Class 35 includes general retail and wholesale of
goods and services.
[4]
Class 43 includes restaurants, snack bars, cafes
and fast food outlets, as well as catering.
[5]
Section 70(2) is part of the transitional
provisions of the Act.
[6]
2020 (4) SA 160 (GJ)
[7]
See in this regard
Verimark (Pty) Ltd v BMW AG BMW AG v Verimark
(Pty) Ltd
2007 (6) SA 263
(SCA) at [5] and
[8]
Commercial Auto Glass (Pty) Ltd v BMW AG
2007 (6) SA 637
(SCA) at [8]
[9]
Verimark
(above)
at [13],
Discovery
(above) at [45].
[10]
(829/2017)
[2018] ZASCA 67
(25 May 2018)
[11]
EUPIO, Cancellation No 14 788 C
(Revocation),
Supermac’s
(Holdings) Ltd v McDonaldls International Property Company Ltd
.
[12]
2019 JDR 1384 (KZD)
[13]
At [10]